



4 




















V 


62d Congress ) 
1st Session ) 


SENATE 


i Document 
] No. 19 


PUBLIC AND PRIVATE RIGHTS 


ON THE 


ANACOSTIA RIVER 


LETTER FROM THE COMMISSIONERS OF 
THE DISTRICT OF COLUMBIA TRANSMIT¬ 
TING THE SECOND REPORT OF MR. HUGH 
T. TAGGART, SPECIAL COUNSEL ON THE 
OWNERSHIP OF LANDS AND RIPARIAN 
RIGHTS ALONG THE ANACOSTIA RIVER 


1 




WASHINGTON 

1911 












62d Congress / 
Ist Session \ 


SENATE 


\ Document 
\ No. 19 


PUBLIC AND PRIVATE RIGHTS 


ON THE 

ANACOSTIA RIVER 

/y % 


LETTER FROM THE COMMISSIONERS OF 
THE DISTRICT OF COLUMBIA TRANSMIT¬ 
TING THE SECOND REPORT OF MR. HUGH 
T. TAGGART, SPECIAL COUNSEL ON THE 
OWNERSHIP OF LANDS AND RIPARIAN 
RIGHTS ALONG THE ANACOSTIA RIVER 






WASHINGTON 

1911 















In the Senate of the United States, 

May i, 1911. 

Resolved.^ That the letter from the Commissioners of the District 
of Columbia transmitting the second report of Mr. Hugh T. Tag¬ 
gart, special counsel, on the ownership of lands and riparian rights 
along the Anacostia Kiver, in the District of Columbia, be printed: 
with accompanying illustrations, as a document. 

Attest: 

Charles G. Bennett, Secretary, 


2 


CONTENTS, 




Page. 

Letter of transmittal. 5 

Syn psis of report. 7 

Title to and dominion over the space between high-water mark on each side 
of the river was absolute in the United States as sovereign when the city of 

Washington w'as established. 7 

The riparian owner possessed no rights which impaired in any manner the 

control of said space by the United States in the interest of the public. 10 

Rights of the riparian owner stated. 10 

The acts of Congress of July 16, 1790, and of March 3, 1791, authorizing the' 
location of the Federal district and accepting the cession of territory by 

Maryland did not in terms authorize the establishment of a city. 11 

Provision for laying out the city upon their lands was made by deeds of con¬ 
veyance of the same by the private owners m trust for that purpose. 12 

The terms of the deeds stated in so far as they are pertinent to the present 

inquiry. 12,13 

The President authorized by the deeds to formulate the plan of the city; title 

to the streets to be in the United States in fee simple. 13 

A plan for the city adopted by the President in 1792, which was engraved and 

published as such by his direction. 13 

In laying the plan down upon the ground the commissioners appointed under 

the act of 1790 had no authority to deviate from it. 13 

Opinion of Attorney General Wirt that the promulgation of the plan amounted 
to a pledge of the public faith that the streets indicated upon it should be 

opened. 14 

As the owner under the deeds in trust, of the street which according to the 
plan was adjacent to the river, the United States would become the riparian 

owner. 14 

The commissioners did not lay out the street as required by the plan. 14 

In laying out the city, the commissioners were confined to land above high- 
water mark; they had no authority under the acts of Congress or under the 
deeds in trust to lay out streets and squares in the river, on the property of 

the United States. 14 

The plan, on its face, brought the city to the water’s edge and showed a street 
along the margin of the river, at which the streets running in the direction 

of the river ended. 14 

After its cession of territory to the United States, the State of Maryland had 
no power to appropriate or provide for the appropriation of the soil of the 

river for wharfing or for other purposes. 15 

That portion of the Maryland act of 1791, w^hich purported to authorize the 
commissioners “to license the building of wharves in the waters of the 

Potomac and the Eastern Branch” adjoining the city, was ultra vires . 15,16 

The wharfing regulations issued by the commissioners on July 20, 1795, under 
the Maryland act, and which authorized the “proprietors of water lots” to 
wharf and build “as far out into the river Potomac and the Eastern Branch 

as they think convenient and proper,” etc., were void. 16 

Congress alone could authorize such encroachments on the property of the 
United States, and it passed no act empowering the commissioners to lay 
out streets or squares in the rivers or to grant licenses for the erection of 

wharves or other obstructions in them. 16 

If the subject had been within the control of the commissioners, the wharf¬ 
ing regulations issued by them were so indefinite and insuflicient as to be 

productive only of uncertainty and confusion. 17 

Even under the Maryland act the power granted the commissioners was a tem¬ 
porary one and ceased on February 27, 1801, when Congress assumed juris¬ 
diction over the District; so held in D. C. v. Johnson, 3 Mackey, 120. 17,18 

Also held that inasmuch as the commissioners were vested with no authority 
over the leasing of wharves, under the Maryland act, after February 27, 

1801, none passed to their successors. 18 


3 


























4 


CONTENTS. 


Page. 

Notwithstanding the direction of the President that the city be laid out agree¬ 
ably to the plan which he caused to be engraved and published in 1792, the 
commissioners deviated from it in radical particulars in their operations 

along the river. 19 

Exhibit No. 1 is a section of the engraved plan of 1792, showing how the city 
should have been laid out along the river. Exhibit No. 2 is a section of a 
plan prepared under the direction of the commissioners in 1797 and based 
on the returns of surveys which had been made and showing how it had 

been, in fact, laid off.19 

A comparison of these exhibits shows that the commissioners utterly disre- 
• garded the requirements of the engraved plan in laying out the city along 

the river. 19 

Unauthorized acts of the commissioners in laying off squares and lots, par¬ 
tially or wholly on the soil of the river, and in disposing of them; Exhibits 
Nos. 3 to 10 are copies of plats of such partially or wholly submerged 

squares. 19, 20 

Squares 883 and 884 sold and conveyed by the commissioners to tlie United 
States, “the greater part of the land in them being under w’ater and title to 

such part being already in the United States. 20 

Instances of arbitrary and inconsistent rulings of the commissioners in regard 
to water property, so called, a subject over which they had no control. Privi¬ 
lege of wharfing granted by them to the owners of some lots and denied to 

owners of other lots similarly situated. The cases of Barry and others_20, 22 

Erroneous ideas prevailed as to the acquisition of private rights, in consequence 
of the acts of the commissioners Many persons purchased lots relying upon 

their assurances and reclaimed land and erected wharves. Barry’s wharf. 

(See also pp. 17, 18)... 22, 23 

The title of the United States to the soil of the river was not affected by the 

unauthorized acts of the Commissioners. 22 

The powers conferred by Congress on the late corporation of the cit}^ and 
those conferred on the District Commissioners by the act of March 3, 1899, 

over the subject of wharves. 23, 24 

Conclusions: When the city was laid out the right to appropriate the soil of the 
river for wharfing or other purposes, was not incident to riparian ownership; 
Congress conferred no power upon the commissioners appointed under the 
act of 1790 to appropriate the soil of the river by laying out city squares and 
streets on it or to grant rights of wharfage to the channel; mere adjacency 
to the water of a city lot did not give the right of wharfing; from the begin¬ 
ning of the city there has been no private wharf in the Anacostia River which 
was a lawful structure, having the authority of an act of Congress for its 

erection and maintenance.’. 25, 26 

A survey and plat showing the present water line along the city front on the 
river, and the water line of the city at the time the city was laid out, and 
further showing the intermediate spaces claimed by individuals is necessary 
to a determination of the location and extent of the unauthorized holdings. 26 

The early plans of the city. . 26 

The Ellicott or engraved plan of 1792. President Washington opposed to de¬ 
partures from it.. 26, 29 

The Dermott plan of 1797. 30-32 

The King plan of 1803. 32 

Mr. King’s report to the commissioners, dated March 8, 1797, calling attention 
to neglect in carrying into effect the plan of the city along the water front 
and the evils resulting therefrom, and submitting a series of plans of that 
part of the city, showing the most eligible course for Water Street with the 
alterations necessary in the existing squares and the new ones to be intro¬ 
duced ... 32 

Mr. King’s report to President Jefferson, dated September 25, 1803, advising 
the perfection of the plan of the city along the water, “in the manner which 
shall most accord with the published plan,” and bring it “as near the pub¬ 
lished plan as can now be done”. 32 

The acts of Congress of March 19, 1904, June 30, 1906, and March 2, 1907, 
affecting the space between Eighteenth and Twenty-third Streets east, and 
extending from the shore line of the city to the channel of the river, under 
which the United States has parted with its fee-simple title to five squares of 
ground which have been lai<l out almost wholly, if not entirely, in tlie river, 
and is in danger of losing its fee-simple title to about 16 acres more; the 
power of Congress to repeal the same and the necessity for such repeal.33-38 


















LETTER OF TRANSMITTAL 


Office Commissioners District of Columbia, 

ashing ton ^ February 1911, 

Hon. J. H. Gallinger, 

Chaii'man Committee on the District of Columbia^ 

United States Senate. 

Sir: The Commissioners of the District of Columbia have the 
honor to transmit herewith the second report made by special counsel, 
Mr. Hugh T. Taggart, relative to the ownership of the land and 
riparian rights along the Anacostia River, for the purpose of im¬ 
provement of the Anacostia Flats, pursuant to the provision for the 
employment of the special counsel contained in “An act making 
appropriations to provide for the expenses of the government of the 
District of Columbia for the fiscal year ending June 30, 1910, and for 
other purposes,” approved March 3, 1909, as follows: 

Anacostia Flats: For the employment of special counsel to investigate and 
determine the ownership of the land and riparian rights along the Anacostia 
Kiver, for the purpose of improvement of the Anacostia Flats, five thousand 
dollars, or so much thereof as may be necessary— 

And to recommend that it be printed with the accompanying maps. 

On March 26, 1910, the commissioners forwarded to you the first 
report of Mr. Taggart, which covered only the portion of the Ana¬ 
costia River not immediately fronting upon the city of Washington, 
wdth the statement that the portion of the river not embraced in that 
report would be the subject of a subsequent report. The first report 
was printed as Senate Document No. 462, Sixty-first Congress, second 
session. 

Very respectfully. 

Board of Commissioners of District of Columbia. 

CuNO H. Rudolph, President, 


6 



/ 



SYNOPSIS OF EEPORT. 


Report of Special Counsel on Puplic and Private Rights Along 

THE Frontage of the City of Washington on the Anacostia 

River, 

synopsis. 

By the cession from Maryland of territory for the permanent seat 
of the Government of the United States, title to and dominion over 
the shores, bed, and waters of the river were vested in the United 
States, as incident to its powers of government as the sovereign, and 
held in trust for the public. Wharves or other obstructions could not 
be lawfully erected in the space without the authority of Congress. 

The title of the riparian owner ended at the line of high water, 
where that of the United States began. The only rights to which 
the rij^arian owner was exclusively entitled by virtue of his situation 
were (1) the right of access to the water from his land and to his 
land from the water, a right which the United States was not bound 
to preserve for his benefit and which it might destroy in the interest 
of the public, and (2) the right to accretions to his land—that is, addi¬ 
tions gradually and imperceptibly made to it. Beyond the line of 
high water and on the shore adjacent to his land and in the stream 
the riparian owner had the same rights only as other members of 
the public. 

The acts of Congress of 1790 and 1791 accepting the cession by 
Maryland did not, in terms, authorize the laying out of the city of 
Washington. The commissioners, provision for whose appointment 
was made, were charged with the duty of defining and limiting the 
Federal District, under the direction of the President, and were 
authorized to acquire by purchase or gift such quantity of land as 
the President might deem proper “ for the use of the United States,” 
and to erect buildings for the accommodation of Congress, the Presi¬ 
dent, and the public offices of the Government. 

Provision for laying out the city upon lands held in private own¬ 
ership was made by deeds of conveyance of such lands by the owners 
in trust for that purpose. The city of Washington had its origin in 
these deeds. Under the trusts declared in them the President was 
empowered to formulate the plan of a “ Federal city,” and it was pro¬ 
vided that title to the streets of the city should be vested in the United 
States in fee simple. 

The plan adopted by the President brought the city to the water’s 
edge, and exhibited a street along the margin of the river, as the 
owner of which, if it had been laid out on the lands conveyed as 

7 



8 


EIGHTS ON THE ANACOSTIA EIVER. 


contemplated by the deeds and by the plan, the United States would 
have become the riparian owner. 

In carrying the plan into effect on the ground the authority of the 
commissioners was confined to the upland. They were invested with 
no authority to lay out streets and squares in the Anacostia River. 

The acts of Congress of 1790 and 1791 gave them no power to 
appropriate lands the title to which was in the United States and 
the deeds in trust did not and could not confer such power upon 
them. 

The State of Maryland, after the cession, had no power or juris¬ 
diction to appropriate or provide for the appropriation of the soil of 
the river for wharfing or other purposes. Congress only could exer¬ 
cise that power. So much of the Mar 3 dand act of 1791 as gave the 
commissioners authority to license the building of wharves in the 
waters of the Potomac and Anacostia Rivers was, therefore, ultra 
vires, and the wharfing regulations issued by the commissioners and 
based upon it were void. 

The commissioners disregarded the plan adopted by the Presi¬ 
dent and its principles in laying out the city along the shore of the 
Anacostia River. ITe city as it should have been laid out along the 
river is shown on Exhibit No. 1, being a section of the plan adopted 
by the President; and the city as it was actually laid out along the 
river by the commissioners is shown on Exhibit No. 2, being a sec¬ 
tion of a plan, based on returns of surveys, prepared in 1797 in the 
commissioners’ office. 

The commissioners did not lay out the street along the margin of 
the river, as called for by the plan, thus depriving the United States, 
so far as it was in their power to do so, of the riparian ownership 
which it was intended by the plan that it should possess. 

They laid out squares, bounded on all sides b}^ streets, partl}^ on 
the upland bordering on the river and partly on land under the 
waters of the river, which belonged to the United States. 

They laid out squares, bounded on all sides by streets and wholly 
on land under said waters, which belonged to the United States. 

They laid out squares with boundaries on the sides which projected 
indefinitely into the waters of the river and apparently intended to 
extend to the navigable channel. This is illustrated by Exhibits Nos. 
3 to 10, inclusive. 

And although title to such submerged land was absolute in the 
United States, they subjected it to the provision of the deeds for “a 
fair and equal division ” between themselves and the original pro¬ 
prietors of the upland. 

They permitted and authorized the erection of wharves and build¬ 
ings in the waters of the river. 

These acts were done without authority from Congress, and they 
afford no valid foundation for claims of title to the submerged land 
by private persons as against the United States. 

The commissioners were arbitrary and inconsistent in their rulings 
as to what constituted “ water property,” although without authority 
whatever in the matter. Lots situated in a particular manner with 
respect to the water were held to be entitled to the privilege of 


RIGHTS ON THE ANACOSTIA RIVER. 


9 


wharfing, while other lots similarly situated were held not to be so 
entitled. 

The confusion and uncertainty as to rights and titles along the 
river front of the city on the Anacostia is due to the unauthorized 
acts of the commissioners. 

The late corporation of the city of Washington was invested with 
certain powers over wharves by the first legislation of Congress on 
the subject. The power to license the erection of private wharves 
was not included in such powers, and the power was not granted to 
the District governments created by the acts of 1871, 1874, or 1878, 
and it was not vested in the District Commissioners by the act of 
March 3, 1899. 

From the beginning of the city, therefore, there has been no private 
wharf on the Anacostia River having the authority of an act of 
Congress for its erection and maintenance. 

Plenary power over the matter of public wharves was granted to 
the city of Washington by Congress, and under the act of 1899 is now 
vested in the Commissioners of the District. 

The bearing upon the questions involved, of the early plans of the 
city, namely, the L’Enfant plan of 1791, the Ellicott or Engraved 
plan of 1792, the Dermott plan of 1797, and the King plan of 1803, 
considered. 

The acts of Congress providing for the grant of the title of the 
United States to certain lands in and along the Anacostia River and 
the necessity for their repeal. 


REPORT OF MR. TAGGART. 

Washington, D. C., Fehruary 7, 1911. 
The Board of Commissioners of the District of Columbia. 

Gentlemen : In my previous report on “ the ownership of the land 
and riparian rights along the Anacostia River,” in the District of 
Columbia (S. Doc. No. 462, 61st Cong., 2d sess.), the matter of 
public and private rights in the shores and bed of this river, within 
which the tide ebbs and flows, was considered with especial referpce 
to the bearing of such rights upon any plan which Congress might 
adopt for the improvement of the harbor of the city of Washington 
and of the navigation of the river through a reclamation of the 
marsh lands, which are commonly known as the Anacostia Flats. 

It is shown by the report that at the time of the adoption of the 
Federal Constitution title to and dominion over the land and water 
between high and low water mark on each side of the river was 
vested in the State of Maryland by the principles of the common law 
as incident to its powers of government as the sovereign and held by 
it in trust for the people of the State; or, as expressed in the opinion 
of tlie Supreme Judicial Court of Massachusetts in Home for Aged 
Women v. Commonwealth, one of the cases cited— 

held ill trust both as owner of the fee and as depository of the sovereign power, 
with a perfect right of control in the interest of the public. 



10 


RIGHTS ON THE ANACOSTIA RIVER. 


It is further shown that the title of the riparian owner ended at 
the line of high water, where that of the State began; that beyond 
this line and on the shore adjacent to his land and in the stream he 
had only the same rights as those of other members of the public; 
that the only private rights to which he was exclusively entitled by 
virtue of his situation were (1) the right of access to the shore and 
the stream from his land, and of access to his land from the shore 
and the stream, a right which the State was not bound to preserve 
for his benefit and which it might destroy in the advancement of 
the interests of the public, and (2) the right to accretions to his 
land—that is, additions gradually and imperceptibly made to it, but 
if the encroachment upon the shore were considerable and the old 
high-water line could be identified the space between the old and 
the new line of high water belonged to the State as sovereign upon 
the theory that as it owned the soil while it was covered with water 
it should own it when the water had left it drv. 

It further appears from the report that by adopting the constitu¬ 
tion the State transferred to the General Government the power to 
regulate and control the Anacostia River and the other navigable 
waters within its limits in the interest of commeice, and that by its 
act of cession, passed December 23, 1788, and confirmed by its act, 
passed December 19, 1791, all rights of the State as sovereign in that 
portion of her territory which is comprised within the present limits 
of the District of Columbia became vested in the United States. 

In the absence of statute granting private rights the foregoing 
principles of the common law are applicable in general to the situa¬ 
tion on the Anacostia River. Peculiar conditions have arisen, how¬ 
ever, on that portion of the shore of the river on which the city of 
Washington abuts, due to unauthorized acts and omissions of those 
who were charged with the duty of laying out and carrying into 
effect the plan of the city on the ground. Sooner or later the present 
jagged and irregular outline of the frontage of the city upon the 
stream, due to these acts and omissions, must be corrected in the 
interest of the public health and convenience and of commercial 
utility and a symmetrical one given to it by the laying out, in 
accordance Avith the design of the plan of the city, the water street 
contemplated and called for by that plan as one of the streets of 
the city. 

Whether the consummation of this improvement can be effected by 
Congress, free from embarrassment by private rights, is the question 
which remains to be determined, and the answer to it must be found 
in the circumstances which have attended the establishment of the 
city, as disclosed by the legislation of Congress and of the State of 
Maryland and by the records of the city in the War Department 
and elseAvhere. 

The matter will be discussed herein under certain heads, embody¬ 
ing, respectively, propositions which are supported by an examina¬ 
tion of these sources of information, and which, while forming a 
basis for ultimate conclusions on the question of the public rights 
will indicate the only grounds upon which claims of private rights 
can be founded. 


RIGHTS ON THE ANACOSTIA RIVER. 


11 


1 . THE ACTS OF CONGRESS ESTABLISHING THE PERMANENT SEAT OF GOV¬ 
ERNMENT DID NOT, IN TERMS, AUTHORIZE THE LAYING OUT OF THE CITY. 

First in order of the matters to be considered is the act of Congress 
approved July IG, 1790 (1 Stats., 130), entitled “An act for estab¬ 
lishing the temporary and permanent seat of the Government of 
the United States,” passed while Congress was in session at the city 
of New York, and an act amendatory thereof, approved March 3, 
1791 (1 Stats., 214), passed while Congress was in session at the city 
of Philadelphia. 

By the first of these acts a “ district of territory not exceeding 10 
miles square,” to be located on the Potomac, and by the second “ so 
as to include a convenient part of the Eastern Branch,” as the Ana- 
costia River was called, was accepted for the permanent seat of the 
Government. The President was authorized by the act of July IG, 
1790, to appoint three commissioners, by whom, under his direction, 
the district was to be surveyed, defined, and limited. 

The third and fourth sections of the act read as follows: 

Sec. 3. And he it enacted, That the said commissioners, or any two of them, 
shall have power to purchase or accept such quantity of land on the eastern 
side of the river within said district as the President shall deem proper for the 
use of the United States, and, according to such plans as the President shall 
approve, the said commissioners, or any two of them, shall, prior to the first 
Monday in December, in the year one thousand eight hundred, provide suitable 
buildings for the accommodation of Congress and of the President and for the 
public offices of the Government of the United States. 

Sec. 4. And he it enacicd, That for defraying the expense of such purchases 
and buildings the President of the United States be authorized and requested 
to accept grants of money. 

The act directed the removal of the offices of Government to the 
district on the Potomac on said first Monday in December, 1800, 
from the city of Philadelphia, which was designated as the seat of 
Government during the interim. 

Apart from the power to locate the district, the authority con¬ 
ferred on the President and the commissioners was limited by the act 
to two things: 

(1) The acquisition by gift or purchase of such quantity of land 
as the President should deem proper for the use of the United States. 

(2) The erection of such buildings as might be necessary for the 
accommodation of the offices of the Government. 

That a city would come into existence as a result of the location of 
the proposed permanent seat of the Government was, no doubt, gen¬ 
erally expected, but it is evident that the act did not confer specifically 
upon the President and the commissioners the poAver to establish one, 
and that such poAver could be attributed to them only by implication. 

Mr. Jefferson, in commenting on the act, said: 

The portion, “ such quantity of land as the President may deem proper for 
the United States,” is vague. It may therefore be extended to the acceptance or 
purchase of hind enough for the toAAUi; * ♦ * the district being defined 

Hiid the requisite quantity of ground secured, the next step must be to fix the 
site of the public buildings and to provide for the establishment of a town 
within the district; as no special authority is given for the latter purpose, the 
consent of the proprietors will be necessary. 

It appears from the public records that President Washington 
took the same view and that it was his original intention to purchase 


12 


EIGHTS ON THE ANACOSTIA RIVER. 


from the private owners all the land to be inclnded within the limits 
of the proposed city, and by sales of the lots to be laid out upon the 
same, to add to the funds available for the purposes of the act of 

1790. In a letter dated February 3, 1791, he said: 

A clear purchase is so preferable to any other arrangement that I would 
scarcely think any other worthy of attention. 

Congress had made no appropriation to enable the President and 
the commissioners to begin and conduct operations under the act, 
and their available funds consisted of a donation of $120,000 by 
the State of Virginia and one of $72,000 by the State of Maryland, 
which were clearly insufficient for the ends in view. 

2. PROVISION FOR LAYING OUT THE CITY WAS MADE BY CONVEYANCES OF 
LAND FOR THAT PURPOSE, TITLE IN FEE TO THE STREETS TO BE IN THE 
UNITED STATES. 

The President was unable to accomplish his purpose of “ a clear 
purchase ” and his negotiations with the proprietors resulted in agree¬ 
ments with and the execution of deeds by a number of them i:: June, 

1791, whereby the greater part of the lands to be included in the city 
was conveyed to Thomas Beall of (Jeorge and John Mackall Gantt, 
and the survivor of them in fee, upon certain trusts, and by the 
Mar 3 dand act of December 19, 1791, the residue of said lands was 
vested in said trustees and subjected to the same trusts. 

The city of Washington had its origin in these deeds, which were 
the same in form in eveiy respect with one exception, the difference 
being in an immaterial particular. 

Among the trusts declared as to the lands conveyed the following 
are pertinent to the present inquiry: 

(1) That upon such lands there should be laid out— 

a Federal city, with such streets, squares, parcels, and lots as the President of 
the United States for the time being shall approve. 

(2) That the trustees, or the survivor of them, or the heirs of such 
survivor, shall convey— 

to 'the Commissioners, for the time being, appointed by virtue of the act of 
Congress, entitled “An act for establishing the temporary and permanent seat 
of the Government of the United States,” and their successors, for the use of 
the United States forever, all the said streets and such of the said squares, 
parcels, and lots as the President shall deem proper for the use of the United 
States. 

(3) That “ as to the residue of the said lots ” into which the lands 
of each grantor shall have been laid off and divided a fair and equal 
division of them shall be made ” between the grantor and the said 
commissioners. 

(4) That the lots assigned to the grantor on such division shall be 
conveyed to him, his heirs or assigns, by the trustees, or the survivor 
of them, or the heirs of such survivor. 

(5) That the lots assigned to the commissioners on such division— 

may be sold at such time or times, in such manner and on such terms and con¬ 
ditions as the President of the United States, for the time being, shall direct— 

And that the trustees, the survivor of them, or his heirs— 

will, on the order and direction of the President, convey all the said lots, so 
sold and ordered to be conveyed, to the respective purchasers, in fee simple, 
according to the terms and conditions of such purchases. 


RIGHTS ON THE ANACOSTIA RIVER. 


13 


(6) Tliat the produce of the sales of the last mentioned lots shall, 
in the first place, be applied to the payment of each grantor, his 
executors, administrators, or assigns, for the portion of his lands—• 

appropriated as aforesaid to the use of the United States, at the rate of £25 per 
acre, not accounting the said streets as part thereof. 

(7) That after such payment, whatever might remain of the pro¬ 
duce of such sales— 

in money or securities of any kind shall be paid, assigned, transferred, and de¬ 
livered over to the President of the United States for the time being, as a 
grant of money and to be applied for the purposes and according to the act of 
Congress aforesaid. 

It was plainly the intention of the grantors and of the President 
and the commissioners to provide by the above trusts for the laying 
out of a city upon the lands conveyed; to procure within it a suffi¬ 
cient quantity of land for the use of the United States, without ex¬ 
pense to the Federal Treasury and to create by the sale of lots a fund 
to aid in the erection of the public buildings. • 

In the development of the scheme of these deeds in trust the* adop¬ 
tion of a plan for the city was, manifestly, a primary requisite—there 
coidd be no “ streets, squares, parcels, and lots ” without one. Such 
expressions presuppose a plan; upon it all subsequent steps and pro¬ 
ceedings must of necessity be based, and under the deeds the power 
to formulate it was vested in the President. To what extent, if at 
all, private riparian ownership in the city would be permitted was a 
matter which depended upon the plan which he might deem proper 
to adopt. 

The Maryland act of December 19, 1791, after reciting the execu¬ 
tion of the deeds and that the President had directed a city to be 
laid out upon the lands conveyed, “ which has since been called the 
city of Washington,” declares: 

(5) And he it enacted, That all the squares, lots, pieces, and parcels of land 
within the said city, which have been or shall be appropriated for the use of 
the United States, and also the streets, shall remain and be for the use of the 
United States. 

This legislative provision was sufficient to vest the legal title in the 
United States without a conveyance by the trustees. The Supreme 
Court, in considering the legal import of the deeds, held in the case 
of Van Ness v. City of Washington (4 Pet., 285) that: 

The streets and public squares are declared to be “ for the use of the United 
States forever.” These were the very words which, by law, are required to vest 
an absolute, unconditional fee simple in the United States. 

See also Morris v. United States (174 U. S., 264). 

The President adopted a plan for the city in 1792, under the 
authority conferred upon him by the deeds in trust, and as such it 
was engraved and published. Thereupon the duty arose under those 
deeds of laying that plan down upon the ground; good faith with the 
grantors and with those who purchased lots in the city, upon the 
assurance which the plan gave, required that this should be done. 
Hence it was not competent fdr the commissioners of their own mo¬ 
tion merely or by agreement with any one of the grantors and for 
their or his supposed benefit to deviate from and disregard the plan 
in material particulars in laying it down on the former land of 
such grantor. 


14 


RIGHTS ON THE ANACOSTIA RIVER. 


Furthermore, the United States was entitled to the fee siinjole of 
the streets indicated the desig’ii of the plan and was otherwise a 
party in interest under the deeds in trust. As the owner in fee simple 
of the street, which, accordincr to the plan, was adjacent to the Avater 
of the Anacostia River the United States became the riparian owner 
and entitled to such rights as were by law incident to such oAvnership. 
The commissioners had no authority to destroy such rights by 
omitting the street in laying out the city. 

Attorney General Wirt, in an opinion rendered to the President 
on December 16, 1820, says: 

The promulgation of Ellicott’s engraved plan throughout the United States, 
with the explanatory notes annexed to it, holding up among other induce¬ 
ments to purchasers the convenient arrangement of the streets as thereby indi¬ 
cated and the publication of and exhibition of this plan on the day of sale, 
amount, in my opinion, to a pledge of the public faith, that the streets thus in¬ 
dicated should be opened. 

3. THE AUTHORITY GIVEN THE COMMISSIONERS TO LAY OUT THE CITY AVAS 

CONFINED TO LANDS ABOVE HIGH-WATER MARK. THEY HAD NO AUTHORITY 

TO LAY OUT STREETS AND SQUARES IN THE ANACOSTIA RIVER. 

Whether the authority of the President and the commissioners to 
establish the city be regarded as derived Avholly from the deeds in 
trust or partly from them and partly from the act of Congress of 
July 16, 1790, they were vested in neither case Avith authority to en¬ 
croach upon the shore or bed of the Anacostia RiA’er in doing so. 

The language of the act of Congress of July 16, 1790, indicates 
that the land to be acquired “ for the use of the United States ■’ Avas 
to be obtained by purchase or gift, and hence Avas to be land then 
held in priA^ate OAAmership. The language, therefore, could have no 
relation to the shores and bed of the Anacostia River Avithin the 
District, title to AAdiich AA^as vested in the United States, as soA^ereign, 
as the successor of the State of Maryland, and the deeds of convey¬ 
ance of lands to Beall and Gantt, in trust, that the city should be 
laid out upon them, Avere of lands held in private property right by 
the several grantors, and the line of OAvnership of those of them Avhose 
land bordered upon the Anacostia River Avas the line of high Avater. 
Beyond that line their title did not extend, and beyond that line the 
trustees took no title by the deeds upon which the trusts declared in 
them could operate. 

After the adoption of the plan of the city by President Washing¬ 
ton and its publication as such, the action of the commissioners in 
carrying into effect the requirements of the deeds in trust should have 
been controlled by the above principles; but the commissioners acted 
in contravention of them in many instances, and in material par¬ 
ticulars in respect of that portion of the city Avhich abutted on the 
Anacostia River, and thereby caused the nature of public and private 
rights in the locality to be misunderstood. 

The plan upon its face brings the city to the water’s edge, and 
upon it is exhibited a street AAdiich extends in a northeasterly direc¬ 
tion along the margin of the riA^er for the entire frontage of the 
city upon it. except for a small portion of such frontage at the 
upper end of the city. Tlie streets running in the direction of the 
Anacostia River end at this street and do not extend across it and 


RIGHTS ON THE ANACOSTIA RIVER. 


15 


into the river. The Supreme Court referred to this street as a fea¬ 
ture of the plan, in Morris v. United States (174 U. S., 2G9), saying 
that the plan discloses— 

a well-defined space of varying width between the river and the lines of the 
lots and squares, extending along the entire front of the city. 

The deeds in trust provide for the laying out of this street upon 
the lands conveyed which liad belonged to the grantors, and not upon 
the subjacent soil of the river, which did not belong to them. The 
power to appropriate this soil to that or to any other purpose was 
not vested in the commissioners. They had such authority only as was 
granted to them by the act of Congress of July 16, 1790, and by the 
deeds in trust. The act of Congress of 1790 gave them no control, as 
has been seen, over lands the title to which was in the United States, 
and the deeds in trust could give them no such control. In fact, 
except for a short distance, the water street was not laid down at all 
upon the ground. 

4. THE STATE OP MARYLAND, AFTER THE CESSION, HAD NO POWER TO 

APPROPRIATE OR PROVIDE FOR THE APPROPRIATION OP THE SOIL OF THE 

ANACOSTIA RIVER FOR WHARPING OR FOR OTHER PURPOSES. 

There are suggestions of wharves on the plan extending from the 
street into the river. In regard to them it is to be said that, as their 
construction would involve encroachments upon the soil of the sover¬ 
eign, they could only be erected under the authority of Congress. The 
State of Maryland had parted with her ownership of the river and 
its soil and with her jurisdiction over the subject. 

The case of Shoemaker v. United States (147 U. S., 314) is in point 
and will now be referred to. The act of Congress of July 16, 1790, 
provided: 

That the operation of the laws of the State within such district shall not be 
affected by this acceptance until the time fixed for the removal of the Govern¬ 
ment thereto and until Congress shall by law otherwise provide. 

The Maryland act of December 19, 1791, provided: 

That all that part of the said territory called Columbia which lies within 
the limits of this State shall be, and the same is hereby, acknowledged to be 
forever ceded and relinquished to the Congress and Government of the United 
States in full and absolute right and exclusive jurisdiction, as well of soil as of 
persons residing or to reside therein, pursuant to the tenor and effect of the 
eighth section of the first article of the Constitution of the United States; 
Provided, That nothing herein contained shall be construed to vest in the United 
States any right of property in the soil so as to affect the rights of individuals 
therein, otherwise than the same shall or may be transferred by such indi¬ 
viduals to the United States. 

The act further provided: 

That the jurisdiction of the laws of this State, over the persons and property 
of individuals residing within the limits of the cession aforesaid, shall not 
cease or determine until Congress shall by law provide for the government 
thereof, under their jurisdiction, in manner provided by the article of the Con¬ 
stitution before recited. 

The question of the powder of the State in view of this legislation 
to dispose of land which was the property of the State at the time 
of tile cession, by granting a patent therefor, was considered by the 


16 


RIGHTS ON THE ANACOSTIA RIVER. 

Supreme Court of the District of Columbia in the Shoemaker case, 
and by the Supreme Court of the United States on appeal, and it 
was held by both courts that such power was not possessed by the 
State and that no title passed by the grant. 

In speaking of the terms in which the cession is couched, Mr. 
Justice Cox, in delivering the opinion of the court below, says: 

Congress and the Government are given full and absolute right over persons, 
and they are given the full and absolute right and exclusive jurisdiction over 
both the persons and soil. It is rather difficult to see how they could be more 
specific in conveying whatever right the State had in the land and soil; * * * 

the State did not undertake to grant away the rights of individuals, but did 
undertake to give to the United States her rights, both as to the soil and 
persons who resided in the part of the State ceded. 

And by way of reply to the question “ whether the State of Mary¬ 
land, at that period, could convey any interest, legal or equitable, in 
the property ” under the Maryland act of 1791, which continued in 
force in the ceded district, the jurisdiction of the laws of Maryland, 
he says: 

To make that applicable to the present case it would be necessary to have 
extended it to the property held by the State; but it seems to me that extended 
no further than to say that the laws which affected private rights should con¬ 
tinue in force until proper provision was made by Congress. 

The views expressed by Justice Cox were approved, on appeal, by 
the Supreme Court of the United States. The opinions of both 
courts appear in volume 147 of its reports. The opinion of Justice 
Cox is also quoted with approval in Morris v. United States (174 
U. S., 240-241). 

Under these decisions, when the State transferred, by the cession to 
the United States, the title held by it in the upland and in the shores 
and bed of the Anacostia Kiver, it divested itself of all ownership of 
and jurisdiction over the same, and of all power to interfere with the 
same in the future. 

It follows that the portion of the Maryland act of 1791, which 
purported to authorize the commissioners— 

to license the building of wharfs in the waters of Potomac and the Eastern 
Branch adjoining the said city, of the material, in the manner and of the extent 
they may judge durable, convenient, and agreeing with the general order— 

was ultra vires; that no power was vested in the commissioners by it, 
and that the wharfing regidations established by them on July 20, 
1795, and based upon it, were void. It will be observed that by the 
terms of the grant of the power to license wharves, it is made abso¬ 
lute in the commissioners, and is not subject, in its exercise, to the 
ai^proval or control of the president. 

The wharfing regulations purported to authorize extensive en¬ 
croachments upon the soil of the Potomac and Anacostia Eivers, the 
property of the sovereign. They provided: 

That all proprietors of water lots are permitted to wharf and build as far out 
into the River Potomac and the Eastern Branch as they think convenient and 
proper, not interrupting the channels of navigation of said waters, leaving a 
space wherever the general plan of the city requires it of equal breadth with 
those streets, etc. 

Congress alone could authorize such encroachments on the property 
of the United States, and it passed no act empowering the commis- 


RIGHTS ON THE ANACOSTIA RIVER. 17 

sioners to lay out streets or squares in the rivers or to grant licenses 
for the erection of wharves or other obstructions in them. 

The twelfth section of the Maryland act of December 19, 1791, and 
the wharfing regidations founded upon it, were often the subject of 
consideration, as to their interpretation and effect, by city officials 
and private parties in interest, during the regime of the commis¬ 
sioners, and since then by Attorneys General and the courts, but the 
validity of the section from the standpoint of the legislative povv^er 
of the State does not seem to have been raised in any instance. The 
discussions have all proceeded upon the assumption of such validity. 

The wharfing regulations, even if the subject had been within the 
control of the commissioners, were insufficient in defining the rights 
intended to be secured by them, and productive only of uncertainty 
and confusion. 

Nicholas King, a surveyor in the employ of the commissioners, was 
directed by them to examine certain wharves of John Nicholson and 
to report whether they had been constructed in accordance with the 
regulations, and he wrote them in reply, under date of December 3, 
1796: 

On referring to these regulations, I am sorry to find them so indefinite as not 
to afford data enough to proceed upon in the execution of your order. 

Having been employed by Mr. Peter, who had conveyed his lands 
to Beall and Gantt in trust, to assist him in the settlement of his 
accounts with the commissioners, Mr. King wrote them, under date of 
June 22, 1798, on behalf of ]Mr. Peter, asking for information as to 
‘‘bounds, dimensions, and privileges of those parts of the city of 
IVashington generally called water property and assigned to him on 
division with the commissioners,” and saying that Mr. Peter, “ by 
selling a right as specific where it was indefinite or erecting buildings 
Avhere streets may be laid out,” would subject himself “to the un¬ 
pleasantness of lawsuits and removing such buildings.” 

Attorney General Wirt, in an opinion rendered the President, 
dated July 8, 1818, speaking of the wharfing regulations, says: • 

I doubt the regularity of this order on the ground of its being a general one. 
The law of Maryland clearly contemplated single and specific licenses to each 
individual separately, as applications might be made. 

He held that under the section the commissioners had no authority 
to license the erection of buildings on the wharves, and that the regu¬ 
lations which gave to the owners of “ water lots ” the right “ to wharf 
and build ” to the channel authorized the erection of wharves only, 
and was void as to such permission to build. 

In the case of District of Columbia v. Johnson (3 Macke}^, 120) 
the validity of a license was in question which had been issued by the 
Chief of Engineers of the Army by virtue of the powers conferred 
l)y the Maryland act of December 19, 1791, upon the commissioners 
and sundry acts of Congress through which their powers and duties 
had devolved upon him, as claimed in the license. 

The court, in considering the act of 1791, say: 

Some of the powers conferred by the act of Maryland were of a purely tem¬ 
porary and provisional character, and among them the power which has been 
invoked in this case. 

Section 12 of this act of December 19, 1791, provides: 

“ That the commissioners aforesaid, for the time being, or any two of them, 
shall, from time to time, until Congress shall exercise the jurisdiction and 

92335'’—S. Doc. 19, 62-1-2 



18 


RIGHTS ON THE ANACOSTIA RIVER. 


government within said territory, have power to license the building of wharves 
in the waters of the Potomac and Eastern Branch adjoining said city, * * ♦ 

but no license shall be granted to build a wharf before the land of another,” etc. 

In passing, it may be observed that this seems to be nothing more than the 
power to issue licenses to private persons to build wharves on their own prop¬ 
erty upon certain conditions imposed by the commissioners. * * * The 

act expressly excludes the right of building a wharf in front of another man’s 
property, and it can hardly apply to wharves constructed in front of public 
property. 

Keferring to the act of February 27, 1801, by which Congress as¬ 
sumed jurisdiction over the District of Columbia, the court say: 

The passage of this law. then, was the limit, in point of duration, of the 
temporary powers that I have already spoken of, to license the erection of 
wharves in the waters of the Potomac and Eastern Branch. 

The court held that, inasmuch as the commissioners were vested 
with no authority under the Maryland act of 1791 over the licensing 
of wharves on May 1, 1802, none passed to their successor by the 
act of Congress approved on that day (2 Stats., 175) which abolished 
the commissioners and placed a superintendent in charge of the 
affairs of the city, who was invested with “ all the powers ” and re¬ 
quired to perform “ all the duties which the s£iid commissioners are 
now vested with or are required to perform by or in virtue of any 
act of Congress, or of any act of the General Assembly of Maryland, 
or of any deed of trust from the original proprietors of lots in said 
city ”; and hence that neither the Commissioner of Public Buildings, 
who succeeded the superintendent under the act of April 29, 1816 
(3 Stats., 324), nor the Chief of Engineers, upon whom devolved 
the duties of the Commissioner of Public Buildings under the act 
of March 2,1867 (14 Stats., 466), became vested with such authority. 

The power claimed on behalf of the successors of the commissioners 
to issue licenses for the building of Avharves was also held to be 
inconsistent with that conferred upon the late corporation of the 
city of Washington by certain acts of Congress. The views ex¬ 
pressed by the Supreme Court of the District in the case were 
approved by the Supreme Court of the United States in Morris v. 
United States (174 U. S., 288). 

The legislation by Congress on the subject of wharves will be con¬ 
sidered later under another head. 

5. THE REQUIREMENTS OP THE DEEDS IN TRUST AND OP THE PLAN OP THE 

CITY ADOI'TED BY THE PRESIDENT WERE DISREGARDED BY THE COMMIS¬ 
SIONERS IN LAYING OPP THE CITY ALONG THE SHORE OP THE ANACOSTIA 

RIVER. 

In a letter to the President, dated February 2, 1797, the commis¬ 
sioners say: 

The engraved plan has been the general rule in oiir transactions heretofore. 

In another, dated February 27, 1797, they say: 

That plan required the doing of many acts to carry it into effect, such as 
the laying out and bounding a water street on the waters which surround the 
city, and laying out squares where vacant spaces unappropriated were left in 
several parts of the city. 

And on November 27, 1797, they sent to the President, to be trans¬ 
mitted to Congress, a memorial to that body, in which they say: 

In the month of April, 1792, the President directed a city to be laid out 
agreeably to a plan which he caused to be engraved and published. 


RIGHTS ON THE ANACOSTIA RIVER. 


19 


Yet it is clear that, while they followed the plan on the Potomac 
front of the city, with slight variations, they did not follow its 
requirements in laying down the city on the ground along the 
Anacostia. 

It has been shown that the commissioners in their operations in 
laying olf the city under the deeds in trust were restricted as matter 
of law to the fast land along the shore of the river, which was all 
that had been conveyed in trust for the purpose, and that Congress 
had invested them with no power to encroach upon the property 
of the United States in doing so, and to appropriate the shore and 
bed of the river and subject the submerged soil to the trusts in the 
deeds. Nevertheless, in their operations along the river the com¬ 
missioners ignored the restriction and ignored the requirements of 
the plan adopted for the city, departing from it in radical particu¬ 
lars. The deviations were, in fact, of such a character as to amount 
to the substitution in the locality, in place of the plan which should 
have been their guide, of another one utterly variant from it. 

This will be apparent upon a comparison of the original plan 
engraved and published in 1792, according to which they stated in 
1797, five years later, the President “directed a city to be laid out” 
and which they further stated had been “ the general rule ” in their 
transactions theretofore and which shows what they ought to have 
done, with a map prepared in their oilice known as the Dermott map 
of 1797, which illustrates their operations between 1792 and 1797, 
and which shows the actual predicament of the locality, created by 
disregard of the engraved plan, in their operations between those 
years. 

Sections of the engraved plan and of the Dermott map are ap¬ 
pended hereto for convenience of reference, marked, respectively, 
“Exhibit No. 1” and “Exhibit No. 2.” The comparison will show 
that the commissioners did not lay out, in accordance with the plan, 
the street called for by it, along the margin of the river, as the 
southern boundary of the city, thus depriving the United States of 
the riparian ownership along that boundary which it was intended 
by the plan that it should possess. 

The records of the commissioners show that they laid out squares 
bounded on all sides by streets, composed in part of fast land, border¬ 
ing on the river, which had formerly belonged to grantors in the 
deeds of trust, and composed as to the residue, of land under the 
water of the river, belonging to the United States and which had 
never belonged to said grantors. 

They laid out other squares bounded on all sides by streets, which 
squares and streets were located wholly on land under such waters 
and which belonged to the United States.^ 

They laid out squares with bounndaries on the sides which pro¬ 
jected indefinitely into the waters of the river and apparently in¬ 
tended to extend to the navigable channel. 

And, although title to such submerged land was absolute in the 
United States they applied to it the provisions of the deeds in trust 
for “ a fair and equal division ” between themselves and the grantors 
of the land conveyed and subjected such submerged land which was 
not conveyed by the deeds, to the use and control of individuals as 
if authorized by the deeds to do so. 


20 


BIGHTS ON THE ANACOSTIA RIVER. 


Copies of the plats of sundry of such partially or wholly sub¬ 
merged squares, as laid out by the commissioners, are appended, 
marked, respectively. Exhibits Nos. 3 to 10, inclusive. 

Squares 883 and 884, as surveyed and laid oirt, were each bounded 
on all sides by streets and much the greater part of the land in them 
was under water and belonged to the United States. On a division 
of the squares with Daniel Carroll, of Duddington, as original pro¬ 
prietor, made December 3, 1799, both squares were assigned to the 
commissioners to be sold under the deeds in trust. 

In liber E, one of the land records of the District of Columbia, at 
folio 149, there is recorded a deed from the commissioners to the 
United States, which is dated March 17, 1800, and conveys— 

all those squares, pieces, and parcels of ground in the city of Washington and 
District of Colinnbia known and designated on the plan of said city by the num¬ 
bers 883 and 884. 

The consideration for the deed is stated to be $4,000 paid by the 
Secretary of the Navy. Involved in this transaction was the pur¬ 
chase by the United States of land which already belonged to it. 

The commissioners assumed authority to determine what lots were 
to be considered as ‘‘ water property ” and they sold those assigned 
them on the division with a water privilege,” or with the privilege 
of wharfing,” although no power was vested in them to sell such 
privileges in connection wdth the lots. As such privileges or rights 
were not incident, by law, to the ownership of such lots, they could 
not be attached to such OAvnership by the commissioners, and the 
erection of the Avharves would be a purpresture. 

In their rulings as to what constituted “ Avater property ” the com¬ 
missioners were inconsistent as Avell as arbitrary. Lots situated in 
a particular manner, Avith respect to the Avater, Avere held to be 
“ Avater property,” and again, other lots Avere held not to be “ Avater 
property,” although similarly situated in respect of the water. 

Eor instance, square No. lOOI Avas surveyed NoA^ember 14, 1793. 
It Avas laid out Avholly on fast land and Avas bounded on all sides by 
streets, its southeastern boundary being ‘AYater Street,” Avhich in¬ 
tervened betAveen the square and the river. On the division of the 
square under the deeds in trust with George Walker, the original 
proprietor of the land on which it Avas laid out, lots 4 and 5, fronting 
on Water Street, were assigned to the commissioners. NotAvithstand- 
ing the intervention of a street, title to which Avas in the Lbiited 
States, between them and the riA-er the commissioners sold these lots 
on August 18, 1798, to Charles Minifie “ AAuth the right of Avharfage 
opposite thereto in the Eastern Branch.” 

Square No. 771 Avas surA^eyed NoA^ember 14, 1795, and was bounded 
on all sides by streets. Its boundaiy on the south was Georgia 
Avenue, one of the streets on the plan of the city, and Avhich inter¬ 
vened between it and the river. James Barry became the OAvner of 
lot 1, in which Avas included the Avhole front of the square on the 
avenue. B}^ the surveys the avenue met the vraters of the river at 
this point and extended through them in a soutliAvesterly direction 
for a short distance. 


RIGHTS ON THE ANACOSTIA RIVER. 


21 


Mr. Barry wrote the commissioners under date of October 3, 1795, 
requesting permission— 

to erect a store or buildings agreeably to the regulations of the water property 
of square 771, without adverting to the imaginary direction of Georgia Avenue, 
which runs across iny wharf and would totally render useless the said wharf. 

Tlie commissioners replied to Mr. Barry under date of October 5, 
1795, saying: 

We think with you that an imaginary continuation of Georgia Avenue 
through a considerable depth of tide water, thereby cutting off the water priv¬ 
ilege of square 771 to wharf to the channel, too absurd to form a part of the 
plan of the city of Washington. That it never was a part of the plan that such 
street should be continued through the water and that your purchase in square 
771 gives a perfect right to wharf to any extent in front or south of the prop¬ 
erty purchased by you not injurious to the navigation and to erect buildings 
thereon agreeably to the regulations published. 

Unless tbeir abolition of Georgia Avenue was a valid exercise of 
power and eliminated that street from tbe plan of tbe city tbe priv¬ 
ilege accorded Mr. Barry was in contravention of tbe wbarfing regu¬ 
lations wbicb tbe commissioners bad issued on July 20 previously 
and wbicb made it obligatory on persons extending wharves into tbe 
river under tbem to leave a space for a street wberever tbe plan of 
tbe city required it. 

Very different views were expressed by tbem in tbe following 
montb. In a letter to Tbomas LaAV, dated November 30, 1795, they 
say : 

The board has taken under consideration your letter of the 19th instant 
and see the advantage resulting from the measures you propose, but we are 
clearly of opinion that we have no power to stop or appropriate for any other 
purposes the streets as laid down on the original plan of the city. 

In a letter to Nicholas King, dated June 25, 1798, tbe commis¬ 
sioners sav: 

C-' 

With respect to square No. 22, we do not consider that it is entitled to any 
water privilege, as a street intervenes between it and the water. 

Square No. 1067 was similarly situated. Nevertheless on August 
18, 1798, tbe commissioners sold to Charles Minifie, as above noted, 
two lots in it “ ivitb tbe right of wharfage opposite thereto in tbe 
Eastern Branch.” 

Tbe Supreme Court of tbe United States has held that tbe position 
taken by tbe commissioners in tbeir letter to Mr. King was the cor¬ 
rect one, and it has further held that title in fee simple to the inter- 
venino- street in such cases being in tbe United States it was tbe 
riparian owner. 

In tbeir letter to Mr. King the commissioners further said, “But 
as there is some high ground between Water Street and tbe water,” 
they bad no objection to laying out a new square “between Water 
Street and tbe channel ” and dividing it with Mr. Peter. 

In regard to this tbe Supreme Court makes the following obser¬ 
vations in Morris v. United States (174 U. S., 280) : 

The suggestion of the commissioners to lay out and divide a square south of 
Water Street was never acted upon. It is i)lain that the commissioners would 
have had no right to disregard the action of the President in establishing Water 


22 


RIGHTS ON THE ANACOSTIA RIVER. 


Street as the southern boundary of the city. It also appears from the letter of 
Mr. King that such a proposed square would have been under the waters of 
the Potomac, and therefore consisted of territory belonging to the United States, 
as successor to the sovereignty of Maryland, and not to them as grantees of 
Mr. Peter. 

The court had before it a situation on the Potomac River, but the 
principles announced as rules for the conduct of the commissioners 
were equally applicable to the Anacostia, on which the proceedings 
of the commissioners were in violation of them. 

In their letter to Mr. Barry of October 5, 1795, the commissioners 
state that “ the water privilege of square 771 to wharf to the channel ” 
is incident to his purchase, and that his purchase “ gives a perfect 
right to wharf to any fxtent in front or south of the property yet, 
in a letter to Mr. King dated August 7, 1798, they state: 

It has been the uniform opinion of Mr. Scott and Mr. White that the com¬ 
missioners have no right to determine the bounds or extent of the water prop¬ 
erty attached to the squares or lots in the city. 

6. RIGHTS AND TITLES ALONG THE PART OF THE CITY ON THE ANACOSTIA 
RIVER WERE RENDERED UNCERTAIN BY THE ACTS OF THE COMMISSIONERS. 

The claims of the commissioners to powers which they did not 
possess, their disregard of the plan of the city in laying out the city 
along the Anacostia River, their unauthorized acts in appropriating 
the soil of the river for squares and streets and in declaring what 
lots should be considered as “ water property ” and what lots should 
not be so considered, and in selling such lots with the right of wharf- 
ing, and in granting licenses for the erection of wharves and build¬ 
ings in the river has had the effect of creating doubt and uncertainty 
in many cases, especially where the square, or so-called square, lay 
partly or wholly in the water, as to rights and titles to the alleged 
“ water property,” assigned to the commissioners or to individuals, 
on divisions and acquired by purchase from one or other of them. 
This doubt and uncertainty has been a blight upon that section of 
the city and has retarded its improvement since the abolition of the 
board in 1802. 

Under the deeds in trust the divisions between the commissioners 
and the grantors became sources of title to the lots assigned to one 
or the other, and no title or right could be acquired to land under the 
water by a grant from either, nor could a right of wharfing be 
acquired through a specific grant of the same from either. The title 
and dominion of the United States over the soil and water of tlie 
river had not been relinquished and would remain unaffected thereby. 

But many persons purchased lots, relying upon the assurances of 
the commissioners that they were acquiring such rights; wharves 
were erected and reclamations of land, more or less extensive, were 
made from the river. Such purchasers became vested with no title 
or right to the land under water, to such reclaimed land, or to such 
wharves, as against the United States, for the reasons stated. Caveat 
Emptor. 

The erroneous ideas which have preAGailed in consequence of the 
acts of the commissioners is indicated by the numerous deeds which 
have been recorded, purporting to convey lots, extending “to the 


RIGHTS ON THE ANACOSTIA RIVER. 


23 


channel ” of the Anacostia Kiver and by advertisements for the sale 
of such lots. 

James Barry, above referred to, under date of December 27, 1801, 
advertised for sale lots in square No. 771, “with the wharf and im¬ 
provements thereon,” stating that the lots, “ exclusive of made 
ground,” contained 28,468 square feet; that there was about 41,000 
square feet of “made ground ”; and that about 12,000 square feet 
more could be made, making “in all about 81,468 square feet”; and 
that the property extended from Third Street east to Canal Street 
and “ keeps the same width to the channel.” 

7 . THE LATE CORPORATION OF THE CITY OF WASHINGTON WAS INVESTED 

WITH CERTAIN POWERS OVER WHARVES BY THE FIRST LEGISLATION OF 

CONGRESS ON THE SUBJECT. THE POWER TO LICENSE THE ERECTION 

OP PRIVATE WHARVES WAS NOT INCLUDED IN SUCH POWERS. 

The act of Congress of May 3, 1802, incorporating the city con¬ 
ferred no authority upon it over wharves. By the supplementary act 
of February 24, 1804, the corporation was authorized— 

To preserve the navigation of the Potomac and Anacostia Rivers adjoining the 
city; to erect, repair, and regulate public 'wharves; and to deepen docks and 
basins. 

These powers were not enlarged by the act of May 4, 1812. 

By the act of May 15, 1820, all former acts relating to the city were 
repealed and a new charter was granted to it. The powers above 
mentioned were again conferred upon the city and the further 
power— 

To regulate the manner of erecting and the rates of wharfage at private 
wharves. 

The power “ to erect, repair, and regulate public wharves ” invested 
the corporation with full power over that class, but the power “to 
regulate the manner of erecting and the rates of wharfage at private 
wharves” did not include authority to license or grant permits for 
their erection. 

This was the opinion of the committee of police of the common 
council of the city, as appears from a report submitted by them on 
May 25, 1846, on the subject of “water rights,” and w^hich was ap¬ 
proved in a report of the committee on wharves and harbors of the 
House of Delegates of the Legislative Assembly of the District, sub¬ 
mitted July 27, 1871. As to the power to license the erection of 
private wharves the committee of police say: 

This power is to be exercised exclusively by the commissioner of public build¬ 
ings, and the exercise of it by him is confined to the water lots. 

The statement of the committee is evidently based upon the as¬ 
sumption of the validity of that portion of the Maryland act of 1791, 
giving the commissioners the power to license the erection of wharves 
and of the validity of the wharfing regulations issued by them, and 
upon the further assumption of the transmission of the powp’ to the 
succ.essors of the commissioners. But the court held, in District v. 
Johnson, above cited, which was decided March 3, 1884, that the 
power granted the commissioners was a temporary one and expired 
on February 27, 1801, when Congress assumed jurisdiction over the 


24 


RIGHTS ON THE ANACOSTIA RIVER. 


District, and hence was not transmitted to the successors of the com¬ 
missioners. In fact, the grant of the power was invalid ab initio. 

In speaking of the powers conferred by the act of 1820, upon the 
city of Washington over wharves, the court say, in the latter case: 

We suppose the power to erect public wharves is a power to erect them on 
public property and not upon private property. This act, therefore, confers 
upon the city of Washington the plenary power to erect and repair public 
wharves. 

It is evident Ihat even a private wharf must be erected on public 
loroperty, viz, the soil of the river, and this could not be done without 
the authority of Congress. 

The power to license the erection of private wharves was not 
granted to the District of Columbia by the act of February 21, 1871, 
which repealed the charters of the cities of AVashington and George¬ 
town and provided a government for the entire District, which was 
declared “to be the successor of those corporations”; and it w\as not 
granted by the acts of June 20, 1874, or June 11, 1878, by each of 
which a government was provided for the District. 

By the act approved March 3, 1899, entitled “An act relative to the 
control of wharf property and certain public spaces in the District 
of Columbia,” portions of the banks of the Potomac River are 
2 :)laced under the jurisdiction and control of the Chief of Engineers 
of the United States Army, and, excepting them, the act provides 
that— 

The Commissioners of the District of Columbia shall have the exclusive 
charge and control of all wharf property belonging to the United States or to 
the District of Columbia within said District, including all the wharves, piers, 
bulkheads, and structures thereon and waters adjacent thereto within the pier 
lines, and all slips, basins, docks, water fronts, land under water and struc¬ 
tures thereon which are now owned or possessed by the United States or the 
District of Columbia, or to which they or either of them may become enti¬ 
tled * * * and said Commissioners of the District of Columbia shall have 

exclusive charge and control of the repairing, building, rebuilding, maintaining 
altering, strengthening, leasing, and protecting said property and every part 
thereof, and all the cleaning, dredging, and deepening necessary in aiuf about 
the same within the pier lines. 

These provisions relate, obviously, to public wharves only. The 
commissioners and the Chief of Engineers are empowered b}^ the act 
to make rules and regulations “ for the government and proper care ” 
of the property placed under their respective control, and they are 
then empowered—■ 

to make and enforce rules and regulations in regard to building and repairing 
wharves, the rental thereof, and the rate of wharfage. ^ 

The act directs that “all rents so collected shall be covered into 
the Treasury of the United States,” and that no lease made under the 
provisions of the act shall be for a longer period than 10 years. The 
last provision as well as the language of the clause itself seem to 
be inconsistent with the idea that the clause was intended to have 
any relation to private wharves. 

The act provides that— 

Said commissioners are also hereby authorized and empowered to make all 
needful rules and regulations for the government and control of all wharves 
piers, bulkheads, and structures thereon and waters adjacent thereto within the 
pier lines, and all the basins, slips, and docks, with the land under water in said 
District not owned by the United States or the District of Columbia. 


EIGHTS ON THE ANACOSTIA KIVEB. 


25 


No authority is conferred by this clause of the act to license the 
erection of private wharves, but the power of the Commissioners of 
the District over the erection of public wharves on the j)ublic prop¬ 
erty seems to be as full and complete under the act as that formerly 
vested in the corporation of the city^of Washington, ‘‘ to erect, repair, 
and regulate public wharves,” which was held in District v. »Johnson 
to be a plenary one; and the powers of the commissioners are ex¬ 
pressly extended by the act to the leasing and the collection of 
rentals for wharf property under their charge and control. 

The following conclusions would seem, therefore, to be inevit¬ 
able, viz: 

(1) At the time of the execution of the deeds in trust the titles of 
those who owned lands bordering upon the river did not extend 
beyond the line of high water, and the right to appropriate the soil 
of the stream for wharting or other purposes was not incident by the 
common law or by statute to riparian ownership on the Anacostia 
River. 

(2) The commissioners were not invested with authority,by the deeds 
or otherwise, to appropriate the soil of the river by laying out upon 
it city squares and streets, or by granting rights of wharfage to 
the navigable channel. 

(3) If the city had been laid out along the Aanacostia River in 
accordance with the plan adopted by the President, there would have 
been no “ water lots ” in it in the sense of lots to which the right of 
wharfing would be incident by law, and even as the city was actually 
laid out there were no such “water lots.” Mere adjacency to the 
water did not give the right of wharfing, and the commissioners 
had not been vested by Congress with the power to grant it. 

(4) The commissioners were invested with no authority over 
wharves by the twelfth section of the Maryland act of 1T91, which 
granted them power to license their erection. The* State at that 
time had no jurisdiction over the subject. 

(5) Neither the superintendent, the commissioner of public build¬ 
ings, nor the Chief of Engineers of the Army, as the successors of the 
commissioners, were vested with any authority over the subject of 
wharves. 

(6) The late corporation of the city of AYashington, although 
given by Congress full authority over the erection and repair of 
public wharves, was not invested with power to license the erection 
of private wharves. 

(7) The governments established for the District by the acts of 
1871, 1874, and 1878 were not granted the power to license the erec¬ 
tion of private wharves; and it was not conferred upon the Com¬ 
missioners of the District of Columbia by the act of 1899. 

Finally, it follows, as a necessary deduction from the premises, 
that from the beginning of the city there has been no private wharf 
on the Anacostia River which was a lawful structure, having the 
authority of an act of Congress for its erection and maintenance as 
such; and that a private individual Avho erected such a wharf, having 
done so without such authority, acquired no right or title, as against 
the United States, to the structure or to ground reclaimed from the 
river in connection with it. 

A preliminary requisite to an examination in detail of the location 
and extent of these unauthorized holdings will be a survey and plat 


26 


EIGHTS ON THE ANACOSTIA RIVEE. 


showing the present water line along the city front and the water 
line of the city at the time the city was laid out, and further showing 
the intermediate spaces claimed by individuals. 

It may be urged that the power conferred by Congress upon the 
late corporation of the city of Washington and upon the commis¬ 
sioners to regulate private wharves involved a recognition of the 
existence of lawful structures of the kind, but it is well settled that 
a statute based upon an erroneous legislative assumption as to the 
existing law does not make valid that which was not so before. 

Chief Justice Marshall, in delivering the opinion of the court in 
Postmaster General v. Early (12 Wh., 148), says: 

A mistaken opinion of the legislature concerning the law does not make law. 

Even an act which is amendatory of a void act, which recognizes 
such void act as a valid subsisting law, does hot validate the latter. 
In speaking of such an amendatory act the court say in South Ottawa 
V. Perkins (94 U. S., 269) : 

It does not propose to give any new force or validity to the supposed act 
* * *. It takes for granted—mistakenly, as we have seen—that the act 
was duly passed and nothing more. 

(See also Post v. Supervisors, 105 U. S., 668.) 

THE PLANS OF THE CITY. 

The records of the commissioners and their successors show that 
four plans of the city made their appearance in the early days of its 
history, each having a peculiar significance of its own. Two of them 
showed the city as it was proposed to lay it down upon the ground. 
These were prepared under the immediate direction of President 
Washington, the first by P. C. L’Enfant, in 1791, and the second by 
Andrew Ellicott, in 1792. The commissioners directed the prepara¬ 
tion of the third, by James R. Dermott, a surveyor in their employ. 
It was begun in their office in 1795 and was completed in 1797. The 
fourth was prepared in 1803 by Nicholas King, surveyor of the city, 
under the superintendent, who succeeded the commissioners. 

After the preparation of the L’Enfant plan differences arose 
which resulted in the severance of his connection with the affairs of 
the city, and this led to the preparation, by the President’s direction, 
of the plan of Mr. Ellicott, which superseded that of L’Enfant. 

The Ellicott plan has been treated in the present discussion as the 
plan of the city for the following reasons: 

(1) It was adopted as such by the President. 

(2) The commissioners declared in 1797 that the President had 
directed the city to be laid out in accordance with it and that it had 
been the general rule in their transactions. 

(3) TVJiile its requirements had not been observed by them, nearly 
all the squares along the Anacostia had been surveyed between 1792 
and 1797, during which time it was the only plan of the city in 
existence. 

(4) The President was pronounced in his opposition to departures 
from it. 

The commissioners were invested by the deeds in trust with no 
authority whatever over the plan of the proposed city. The matter 


RIGHTS ON THE ANACOSTIA RIVER. 


27 


was wholly within the province of the President, and when he exer¬ 
cised his power and declared the plan and caused it to be engraved 
and published as such and directed the city to be laid out agreeably 
to it, it became their duty to obey the direction. The plan should 
have been their guide. They had no right to substitute their owm 
fancies for its requirements and deprive the United States of im¬ 
portant rights conferred by it; yet, as we have seen, this was what 
was done by them in laying off the city along the Anacostia, where 
they left a situation which bore scarcely a semblance of that plan. 

After the adoption of the plan by the President, surveys of the 
squares became necessary in order to enable the President “ to select 
such of the squares, parcels, and lots ” as he should “ deem proper 
for the use of the United States” and to enable the commissioners 
and the original proprietors to make “ a fair and equal division ” 
between them of the residue of the lots. The deeds in trust con¬ 
templated three things, viz, streets, parcels of land for the use of 
the United States, and building lots, to be divided between the com¬ 
missioners and the original proprietors. 

The surveyors returned plats of surveys under the commissioners’ 
directions. Those of the squares showed their boundaries and di¬ 
mensions, and these were subdivided into lots in the commissioners’ 
office; a division of the lots was made between them and the pro¬ 
prietors, and the proceedings were then entered in books called 
registers of squares. 

The plans of Dermott and King were based upon these returns 
of the surveyors and illustrated the progress made in laying down 
the city upon the ground. 

The plans of Ellicott, Dermott, and King have each a bearing upon 
important features of the present inquiry and upon the problem of 
the improvement of the river front of the city upon the Anacostia. 
A proper understanding is necessary, therefore, of their respective 
claims to consideration as disclosed by the public records. 

THE ELLICOTT OR ENGRAVED PLAN OF 1792. 

President Washington wrote the commissioners from Philadelphia 
on March 6, 1792, in regard to the necessity for another plan by 
reason of the differences with L’Enfant, and saying that “ the mat¬ 
ter had been placed in Mr. Ellicott’s hands about three weeks ago,” 
and Mr. Ellicott ivrote them on February 20, 1792, stating that he 
had been directed by the President to prepare a plan for an en¬ 
graver,” and that it had been completed and handed to the President. 

The commissioners having suggested some changes in the plan, Mr. 
Jefferson, Secretary of State, wrote them under date of April 20, 
1792, stating that their letter had been laid before the President, and 
adding: 

i:e thinks it best to decline making any alterations on the plan of the city. 
The considerations which weigh with him are the expediency of fixing the 
public opinion on the thing as stable and unalterable. 

In a letter to the commissioners from Philadelphia, dated Febru¬ 
ary 20, 1797, the President, referring to the Ellicott plan, states: 

It was sent to the engraver, intending that work and the promulgation thereof 
were to give it the final and regulating stamp. 


28 


RIGHTS ON THE ANACOSTIA RIVER. 


The engravers reported to Mr. Ellicott on October 16, 1792, that 
the engraving had been completed and thereupon copies from the 
plate were widely circulated in the United States and in foreign 
countries as the plan of the city, and operations under it began. 

There were importunities by proprietors “ to whom the acquisition 
of an additional lot was more desirable than either the beauty or 
health of the city,” for changes in the engraved plan in particular 
locations, but the President was emphatic in his declination to sanc¬ 
tion departures from it, and the commissioners in their letters to him 
exi)ressed themselves as also averse to them. 

They say, in a letter to him dated January 2, 1797: 

It is by no means onr wish that any alterations should be made in the pub¬ 
lished plan of the city. 

In a letter to them, dated at Philadelphia, on February 20, 1797, 
the President says: 

Indeed, I have so often expressed my unwillingness to depart from the en¬ 
graved plan, in every instance where it could be avoided, that I had hoped no 
repetition of this sort would have been made to you by any of the proprietors. 

Gen. Washington, after the expiration of his term of office as 
President, being requested by Mr. Thornton, one of the commis¬ 
sioners, to give his views on a matter then before the board, wrote 
Mr. Thornton, on June 1, 1799: 

It has always been my invariable opinion, and it still remains to be so, that 
no departure from the engraved plan of the city ought to be allowed, unless 
imperious necessity should require it or some great public good to be promoted 
thereby. 

President xidams, in a letter to the Secretary of State, dated at 
Quincy, June 19, 1799, expressed himself in regard to the matter as 
follows: 

My inclination and judgment, so far as I understand the subject, are with 
Gen. Washington and Mr. Thornton. 

AVhen the National Legislature met for the first time at the per¬ 
manent seat of the Government, the commissioners, on December 8, 
1800, wrote the President of the Senate and the Speaker of the House, 
sending them copies of the engraved plan, and sa^ung: 

We do ourselves the honor of forwarding a plan of the city for each Member 
of your House, which we beg the favor of you to direct the Doorkeeper to de¬ 
liver. 

It is apparent from the foregoing that, notwithstanding unauthor¬ 
ized deviations from the engraved plan by the commissioners, along 
the Anacostia River or elsewhere, it never lost its distinctive chai^ 
acter as the plan of the city, in accordance with which or with the 
general design of which, at least, the city should have taken form 
on the ground. The street called for by it as the boundary of the 
city along the river is one of the principal features of the plan and 
was, and is, of the utmost importance to the United States. 

The commissioners recognized the duty of laying it out, for in a 
letter to the President dated February 27, 1797, speaking of the plan 
they say: ’ 

That plan required the doing of many things to carry it into effect, such as 
the laying out and bounding a water street on the waters which surround the 
city, etc. 


RIGHTS ON THE ANACOSTIA RIVER. 


29 


Tliey not only did not lay out the street in accordance with the 
requirements of the plan, but they laid out squares to the water’s 
edge and beyond it and granted the soil of the river to individuals 
out to the navigable channel for the erection of wharves, and thus 
prevented, in so far as it was in their power to do so, the laying out 
of the street at all. 

If this street had been laid down upon the land conveyed in trust 
for the purpose title to it would have become vested in the United 
States in fee, and the United States, as the owner of the street and 
of the adjacent soil of the river, would have had the matter of 
wharfing out from the street wholly under its control. 

Nicholas King, then connected with the surveying department of 
the city, in a report to the commissioners dated March 8, 1797, states 
that the most interesting part of the plan of the city was that along 
the water, and that— 

This part of the bnsioess of those who were to lay out the city has not been 
attended to with the erre the sul),1ect merited and the longer it is neglected the 
Mnore serious will he the evils arising therefrom. 

He laid before them a series of plans exhibiting the part of the 
city along the water from Rock Creek to the marine hospital on the 
Anacostia, showing what appeared to him— 

to he the"^most eligible course for Water Street, with the necessary alterations 
in the squares already laid out or the new ones which will he introduced 
thereby. 

IMr. King became the surveyor of the city under the superintendent 
who succeeded the commissioners. In a report to President Jeffer¬ 
son dated September 25, 1803, in referring to conditions on the water 
front, he says: 

Perfecting this part of the plan so as to leave nothing for conjecture, litiga¬ 
tion, or doubt in the manner which shall most accord with the published plan, 
secure the health of the city, and afford the most general convenience to the 
merchants requires immediate attention. 

In doing this he favored “ the principle adopted in the engraved 
plan ” of a street along the w^ater, saying: 

* The position of this Water Street being determined, it will ascertain the 
extent and situation of the buildings, squares, and streets on the made ground 
from the bank of the river and bring the present as near to the published plan 
as can now be done. 

These observations of Mr. King were made upward of 100 years 
ago, but the situation which inspired them still exists and they are 
as pertinent to-day as when uttered, and more so, owing to the 
growth of the city’s population and other causes. Their wisdom 
has been emphasized by the lapse of time and the solution of exist¬ 
ing evils on the river front of the city, upon the Anacostia, is to be 
found in the recommendation made by him. 

I liave procured and deposited in the office of the surveyor of the 
District for reference copies of such of the plans referred to by Mr. 
King in his letter of March 8, 1797, as relate to the Anacostia River 
front. 


30 


EIGHTS ON THE ANACOSTIA KIVER. 


THE DERMOTT PLAN OF 1797. 

Between 1792 and 1797 the work of surveying in the city had pro¬ 
ceeded, and, in so far as the laying out of squares was concerned, 
much the greater part of it consisted of surveys made in accordance 
with the engraved plan and of squares numl)ered upon it; but surv^eys 
of many squares were returned which did not appear upon that plan, 
mostly on spaces at the intersection of streets. 

The appropriations or reservations of land “for the use of the 
United States ” had been determined and tliese did not fully appear 
on the engraved plan. The soundings of the Potomac and the Ana- 
costia Rivers had again been taken for the purpose of ascertaining 
changes in the depth of the water since the soundings were taken for 
the engraved plan. 

The Dermott plan was intended to indicate the surveys as returned 
and these new features. It Avas prepared by James R. Dermott, a 
surveyor in the employ of the commissioners, and liad its origin in 
the following order, passed by them on June 15, 1795: 

Mr. Dermott directed to i^repare a plan of tlie city, with every appropriation 
plainly and distinctly delineated, together with the appropriation now made by 
the board for the National University and Mint. 

Mr. Dermott stated, in 1799: 

My plan was made for the purpose of connecting the channels of the Potomac 
and Eastern Branch with the squares of the city; it was made from official 
documents returned from the surveyors in the field. 

It is evident that the commissioners considered the delineation 
upon it of the appropriations selected, “ for the use of the United 
States,” as the principal office of the plan. 

They wrote, on October 1, 179G, to Morris and Nicholson, who had 
made large purchases of lots in the city, stating that they had written 
the President on the subject of the public appropriations and adding: 

We shall have them plainly delineated on onr large map, made out with great 
care, and which will be preserved among the records of the city. 

They Avrote, on February 2, 1797, to Samuel Davidson, one of the 
original proprietors, aaRo had coiiA^eyed his lands in trust, saying: 

AVe shall, by the next post, forward to the President of the United States an 
instrument of writing, for his execution, if it meets his approbation, by which 
the public appropriations Avill be finally determined. * * * engraA’ed 

plan has been the general rule in onr transactions heretofore, agreeably to which 
we shall form the instrument intended for the President’s signature. 

The instrument referred to Avas dated March 2, 1797, and directed 
Beall and Gantt, the trustees, to convey to the commissioners— 

all the streets in the city of Washington, as they are laid down and delineated 
on the plan of the city of AVashington hereto annexed, and also the several 
squares, parcels, and lots of ground following— 

Then folloAvs a description by metes and bounds of 17 large areas, 
knoAvn as reservations or appropriations. 

The commissioners Avrote to President Adams on June 21, 1798, 
saying: 

At the close of the late President’s administration he executed an act direct¬ 
ing the trustees of the city of AA'ashington to convey to the commissioners the 
streets of the said city and the grounds which were appropriated to public use. 
In the pressure of business the plan was not annexed. AA^e now send it by Mr. 


RIGHTS ON THE ANACOSTIA RIVER. 


31 


Nourse, with the original act and the draft of another act, which appears to 
ns proper to be executed by the present President, in order to remove any 
objections to a compliance with the late President’s request arising from the 
omission we have mentioned. 

As these acts are the authentic documents of the title of the public to the 
lands appropriated we shall write to Mr. Craik or some other gentleman to 
take charge of their return, rather than trust them to the mail. 

The instrument was signed by President Adams on July 23, 1798, 
but a conveyance was never made by the trustees which was fully 
in accordance with it. Such a conveyance was not necessary to vest 
title in the United States, as has been shown. 

In a letter from the commissioners to Messrs. Law and Barry, dated 
April 11, 1801, they refer to the engraved plan as “ the map of the 
city,” and say— 

lest any alterations should have taken place by currents we have caused the 
soundings to he again taken and laid down in the map of the public appro¬ 
priations, which is now in our office. 

The shore line of the city with reference to the squares appears 
upon it. 

There is a memorandum in the State Department among certain 
papers relating to the city, which was probably written by the 
Secretary of State during President Adams’s administration, which 
refers to the Dermott plan, and reads as follows: 

There are many circumstances to induce the belief that Gen. Washington 
never saw the manuscript plan. The commissioners, and Gen. Washington also, 
in some of their letters about that time speak of the engraved plan as the only 
plan by which they are governed, etc., but the signature of President Adams 
(being the only solemn act I know of), it is presumed, supersedes all prior 
essays or projects, as far as it goes. 

In a letter dated July 14,1804, from President Jefferson to Thomas 
IVIonroe, who as superintendent succeeded the commissioners, he says, 
referring to the Dermott plan: 

The plan and declarations of 1797 were final so far as they went, but even 
they left many parts unfinished, some of which still remain to be declared. 

In the opinion of the Supreme Court in Morris v. United States 
(174 U. S.), much of the data relating to the several plans of the city 
is reviewed, and the court expresses the following views in regard 
to them: 

But while we regard the Dermott map as sufficiently authenticated, we do 
not accept the contention that it is to be considered as the complete and final 
map of the city and that it alone determines the questions before us. * * * 

In short, we think that these several maps are to be-taken together as repre¬ 
senting the intentions of the founders of the city and, so far as possible, are to 
be regarded as parts of one scheme or plan (p. 256). 

Our examination of the evidence has led us to the conclusion that it was 
the intention of the founders of the city to locate it on the bank or shore of the 
Potomac River and to bound it by a street or levee, so as to secure the inhabi¬ 
tants and those engaged in commerce free access to the -navigable waters, and 
that such intention has never been departed from (p. 246). 

In another part of the opinion the court declared for reasons 
stated: 

that the conclusion is warranted that from the first conception of the Federal 
City the establishment of a public street bounding the city on the south, and 
to be known as Water Street, was intended, and that such intention was never 
departed from (p. 270). 


32 


EIGHTS ON. THE ANACOSTIA RIVER. 


Referring to the Dermott plan particularly, the court say (p. 269) : 

It was not understood to set aside or dispense with the important features 
of the previous maps. It no doubt having been made after most of the surve 3 "S 
had been returned, more accuratelj^ comported with the lots, squares, and streets 
as laid out than the previous plans. But, as we have seen, it w^as not itself 
complete. 

It thus becomes apparent that the Dermott plan was not a final 
and complete plan of the city; that it did not dispense with the 
laying out of \Yater Street, an important feature of the previous 
Ilians; that it was authentic so far as it exhibited what had been done, 
but that it supplied no rule of action for the future; for that recourse 
to the engraved plan was still necessary. 

THE KING PLAN OF 1803. 

By an act of Congress approved May 1, 1802, the Board of Com¬ 
missioners Avas abolished and their poAvers and duties transferred to 
a superintendent. 

Nicholas King, for some time connected with the surveying depart¬ 
ment under the commissioners, Avas appointed by President Jeffer¬ 
son, on August 24, 1802, as surveyor of the city under the new officer. 

Mr. King jirepared a plan of the city in 16 sheets or sections, which 
is knoAvn as the King jilan of 1803. It bears the legend “ Plan of the 
city of Washington. Laid doAvn agreeably to the surveyor’s returns 
by Nichs. King, S. C. W., 1803.” 

The plan shoAvs the Avater line of the Potomac and Anacostia 
RiA^ers, Avith reference to the surveys of the squares, and it sIioaa^s the 
lines of the holdings of the original proprietors with reference to 
them. Upon it are also shoAvn the squares which had been surveyed 
since 1797 and which, of course, do not appear on the Dermott plan 
of that year. 

A A^ery important reason for the preparation of such a plan as 
that of Nicholas King is given in a report to the President, dated 
June 5, 1802, made by Robert King, a surveyor in the employ of the 
commissioners at the time they Avere abolished. The report had 
relation to conditions existing in the surveying department of the 
city. In it he refers to “the beAvildered state of the proprietors’ 
accounts,” and says: 

I believe that there is not j^et any acconnt of the proprietors perfectly set¬ 
tled. * * * It will recpiire a large and correct plan of the city whereon to 

lay down the several proprietors’ lines that the squares cut by them and their 
proportions may appear. 

The Supreme Court, in Morris v. United States, upon a review of 
the evidence relating to the King plan, say: 

While it is true that this map of 1S03 was never officially approved or au¬ 
thenticated by any President of the United States, as were the earlier maps, 
and is therefore not of conclusive effect, it is, in our opinion, a legitimate and 
important piece of evidence (p. 260). 

A series of plans Inave been referred to Avhich Avere prepared by 
Mr. King and submitted to the commissioners on March 8, 1797, 
Avith a vieAv to the correction of evils along the water front of the 
city. They showed Avhat he considered the most eligible course for 
AVater Street, Avith necessary alterations in existing squares and ncAV 
ones to be introduced. 


RIGHTS ON THE ANACOSTTA RIVER. 


33 


THE ACTS OF CONGRESS IN THE* INTEREST OF SIDNEY BIEBER. 

The Philadelphia, Baltimore & AYashington Railroad Co. occupies 
under the authority of certain acts of Congress a portion of the bed 
of the river from the end of the bridge upon which its road crosses 
the river to a point between L and M Streets south, where the road 
enters the city. The rights claimed by the company under these 
acts and the nature of its occupation are set forth in a brief “ In mat¬ 
ter of proposed transfer to Sidney Bieber of interest of United States 
in certain land in AA^ashington, D. C.,” prepared by the attorneys 
of the company and tiled by them with the Secretary of AYar. (See 
S. Uoc. No. 388, 60th Cong., 1st sess.) It is claimed by the com¬ 
pany that “ the proposed transfer ” is in derogation of rights ac¬ 
quired by it under the acts of Congress above referred to. By thi^ 
legislation the company did not become vested with a title in fee 
simple to the ground to be used by it and the United States was not 
divested of authority to improve the river front in the locality, but 
through other and recent enactments of Congress affecting the space 
between Eighteenth and Twenty-third Streets east and extending 
from the shore line of the city to the channel of the Anacostia River 
the United States has parted with its fee-simple title to five squares of 
ground, which have been laid out almost Avholly if not entirely in the 
Avater along the shore between said streets, and is in danger of losing 
its fee-simple title to about 16 acres more—a part of the liarbor of 
the city—extending from the south line of these five neAv squares to 
the naAugable channel. 

Until these recent enactments the title of the United States to the 
space affected Avas clear. By the cession from Maryland it became 
the owner in fee of the shores and bed of the river between the lines 
of high-Avater mark on each side of it. Pri\%ate Avharves there Avere 
none having the sanction of law for their existence. Public wharves 
were under the control of Congress, and in so far as they had 
been leased by the District Commissioners, under the act of 1899, I 
am informed by the engineer department of the District government 
that provision Avas made in the leases for the contingency of the 
improvement of the river front under public authority. 

The first of such recent enactments is the act approved March 19, 
1904 (33 Stats., 143), which proAuded: 

That the Secretary of War be, and he is hereby, directed to grant and convey 
unto Sidney Bieber and his heirs and assigns all the right, title, and interest of 
the United States in and to all of a certain square of land in the city of AATish- 
ington, in the District of Columbia, known upon the plat or plan of said city as 
square numbered eleven hundred and thirty-one, upon the payment by the said 
Sidney Bieber into the Treasury of the United States of such sum of money as 
the said Secretary of War, upon consideration of all the circumstances, shall 
determine proper to be paid by the said Bieber for the said square. 

By an act approved March 3,1905 (33 Stats., 1014), the outlines of 
the square were defined, and the surveyor of the District was directed 
to mark them and to record a plat designating the area, containing 
58,777.98 square feet, as square 1131. 

By deed dated July 26, 1904, and recorded July 27, 1904, in liber 
No. 2830, at folios 115 et seq., of the District land records, the Acting 
Secretary of AYar conveyed to Mr. Bieber in fee simple “all the right, 
title, and interest of the United States” in square 11 in the city of 

92335°—S. Doc. 19, 62-1-3 




u 


EIGHTS ON THE ANACOSTIA EIVEE. 


Washington in consideration of the sum of $1,000. The act of Con¬ 
gress is recited in the deed as the authority for its execution, and a 
conveyance of square 1131 was evidently intended. 

By a further act, approved June 30, 1900 (34 Stats., 772, 787), it 
was provided: 

That the Secretary of War be, and he is hereby, authorized and directed to 
grant and convey unto Sidney Bieber and his heirs and assigns all the right, 
title, and interest of the United States in and to all of certain land in the city 
of Washington, in the District of Columbia, lying south of square eleven 
hundred and twenty-three, eleven hundred and forty-eight, and eleven hundred 
and forty-nine, conforming with the metes and bounds of square eleven hundred 
and thirty-one, and that part of square eleven hundred and seventeen situated 
betwean the north lines of Water and I Streets, the east line of Eighteenth 
Street, and the west line of Nineteenth Street, when said streets are extended, 
upon the payment by the said Sidney Bieber into the Treasury of the United 
States of such sum of money as the said Secretary of War, upon consideration 
of all the circumstances, shall determine proper to be paid for the said squares; 
and the surveyor of the District of Columbia is hereby authorized and directed 
to mark out such areas, to record plats, and to designate the proper square 
numbers. 

By deed dated September 19, 1906, and recorded the same day in 
liber No. 3022, at folios 435 et seq., of the District land records, the 
Acting Secretary of War, pursuant to the act, conveyed to Mr. 
Bieber in fee simple, for the consideration of $3,903, “ all the right, 
title, and interest of the United States ” to the squares mentioned in 
the act, and following the description of them given in the act. 

By section 13 of an act approved March 2, 1907 (public, No. 207), 
it was provided: 

That the Secretary of War be, and he is hereby, authorized and directed to 
convey to the purchaser from the United States of square eleven hundred and 
thirty-one, and the south part of square eleven hundred and seventeen, and 
the squares south of squares eleven hundred and twenty-three, eleven hundred 
and forty-eight, and eleven hundred and forty-nine, in the city of Washington, 
all the interest of the United States in the land lying south of the squares so 
purchased and between them and the channel of the Anacostia River, upon the 
payment by such purchaser into the Treasury of the United States of such 
sum of money as the said Secretary of War, upon consideration of all the cir¬ 
cumstances, shall determine proper to be paid for the said land; and the sur¬ 
veyor of the District of Columbia is hereby authorized and directed to mark 
©ut such land and determine the areas and to record a plat thereof. 

A board of officers of the Engineer Corps of the Army was ap¬ 
pointed by Special Order No. 24, War Department, dated May 31, 
1907, to determine the amount to be paid for the transfer of the 
interest of the United States in the land described in the act. 

I am informed by the War Department that the board made a 
report June 19, 1907, fixing a valuation of $21,001.13 upon the prop¬ 
erty to be conveyed to Mr. Bieber, being $9,931.03 for the land north 
of the railroad right of way and $11,070.10 for the land south of 
the railroad right of way; that the Chief of Engineers on August 
16, 1907, recommended that the valuation fixed by the board be 
adopted by the Secretary, and that no further action in the matter 
has been taken. 

EFFORTS TO SECURE A REPEAL OF THE ACTS. 

In view of the embarrassment which would be caused to the Gov- 
erament by this legislation in the case of any improvement of the 
river in the locality, efforts have been made to secure its repeal, 
which have so far been unsuccessful. 


RIGHTS ON THE ANACOSTIA RIVER. 


35 


On March 10, 1908, a report was submitted to the Senate from the 
Committee on the District of Columbia (S. Kept. No. 352, 60th 
Cong., 1st sess.), in wdiich the above legislation was reviewed and 
the repeal of section 13 of the act of 1907, under which no conveyance 
had as yet been executed, Avas recommended. 

Reference is made in the report to projects for the improvement 
of the Anacostia River and the reclamation of its flats, submitted by 
the Secretary of War under the direction of Congress, and to large 
appropriations of money made by Congress for the purpose of such 
improvement, and in this connection the committee say: 

That Congress could not have realized the true intent and purpose of the 
acts of 1904, 1906, and 1907, in so far as they related to this subject, is made 
quite clear by reference to previous and contemporary action by Congress with 
reference to the Anacostia River front. * * * It is inconceivable that 

Congress, while thus making large appropriations for the improvement of 
Anacostia River and the adjacent tide flats, and exhibiting solicitude for the 
acquisition of all interfering titles, should have intentionally directed the 
Secretary of War to convey to Mr. Sidney Bieber or anyone else substantially 
all its title to such tide lands. 

A bill (S. 6047, 60th Cong., 1st sess.) for the repeal of section 13 
of the act of 1907 was reported by the committee and passed the 
Senate March 10, 1908, and was referred to the Committee on Public 
Buildings and Grounds of the House on March 11, 1908. No action 
seems to have been taken by the House committee in the matter. 

By the twenty-sixth section of the act of Congress approved May 
20, 1908 (35 Stats., 543), the Secretary of War, the Attorney Gen¬ 
eral, the president of the Board of Commissioners of the District of 
Columbia, and chairmen of the Committees on Public Buildings and 
Grounds of the two Houses of Congress were created a commission 
‘‘ for the purpose of investigating the title of the United States to 
all lands in the District of Columbia.” The commission were, among 
other things, directed to make recommendations— 

as to the future policy of the Government with respect to the sale or retention 
of any and all such lands, title to which may have been or is now vested in 
the United States, and pending the report of said commission, unless otherwise 
directed by Congress, all authorizations heretofore made for the sale of Gov¬ 
ernment land in the District of Columbia in which conveyances have not been 
made ♦ * * shall be held in abeyance. 

The commission submitted a report January 14, 1909 (S. Doc. No. 
653, 60th Cong., 2d sess.), in which they state that they were unani¬ 
mously of the opinion that the United States— 

should retain the title to undeveloped land and to land which may even in a 
remote possibility be needed for or is adjacent to public improvements. 

The commission recommended— 

that in view of the probable improvement of the Anacostia River or Eastern 
Branch of the Potomac the following acts, act of March 19, 1904 (33 Stats., 
143) ; March 3, 1905 (33 Stats., 1014) ; June 30, 1906 (34 Stat, 787, sec. 21); 
March 2, 1907 (34 Stat., 1237, sec. 13), should be repealed, with due regard to 
any vested rights in the premises. 

No action seems to have been taken on the recommendation. 

In the report above mentioned of the Committee on the District of 
Columbia to the Senate the repeal of section 13 of the act of 1907 
is recommended, and the Senate passed a bill for that purpose. The 


36 


RIGHTS OH THE ANACOSTTA RIVER. 


committee say in regard to the previous acts of 190d and 1906, under 
wliicli deeds to Mr. Bieber were executed: 

As to the lands conveyed, Congress seems to be powerless, but the committee 
Is investigating the subject and hopes to be able to make some recommendations 
in the premises at a later date. 

The doubt suggested was evidently based upon the legal principle 
that a grant of land made by a State and accepted by the grantee is 
an executed contract and that a repeal of the grant tAmuld be in con¬ 
travention of the constitutional provision that no person shall be 
deprived of his property Avithout clue process of law. 

In support of the poAver of Congress to repeal the so-called Bieber 
acts certain considerations 'seem to be pertinent. 

UjDon the face of the acts of 1904, 1906, and 1907 the tenor of each 
of which is above giA^en in full, nothing appears to indicate that the 
lands aflected by the legislation Avere tidal or submerged lands. The 
necessary implications are to the contrary. In the act of 1904 the 
description is “a certain scpiare of land in the city of Washington 
known upon the plat or plan of said city as square No. 1131.” In 
the act of 1906 the description is “ certain land in the city of Wash¬ 
ington, in the District of Columbia.” 

Under the act of 1904 a conveyance was made to Mr. Bieber of 
“ the right, title, and interest of the United States in one square of 
ground in the city of Washington,” and under the act of 1906 a con- 
A^eyance was made to him of four other squares “ in the city of Wash¬ 
ington,” and on the face of the acts there is no suggestion that the 
lands affected AA^ere submerged or tide lands and AA’'ere to be disposed 
of as such. 

In section 13 of the act of 1907 the land affected is described as 
the land lying south of the aboA^e squares and “ between them and the 
channel of the Anacostia Riv’^er,” and there is no suggestion that the 
land referred to aauas submerged or tide land and was to be disposed 
of as such. Because the channel of the river is mentioned as a bound¬ 
ary it is not to be presumed that the land constituted part of the 
bottom of the riA^er and not land merely adjacent to the tidewater. 

It folloAvs that Congress in so legislating must have deemed the 
land affected by the acts to be fast land, capable of occupation and 
use and not a part of the bed of the river—land held in trust for 
public purj^oses. No duty is imposed upon the grantee to benefit the 
public by its reclamation or improvement in any manner. 

The facts in the case of Illinois Central E. R. Co. 'y. Illinois and 
the city of Chicago (the Lake Front case, 146 U. S., 387) resemble 
closely in important particulars those Avhich are here involved, and 
upon the principles announced in the opinion of the court the right 
of Congress to repeal all of the aboA^e-mentioned acts seems clear. 

It may be premised that the State of Mar 3 dand became possessed of 
title to and dominion oA^er the tidewaters Avithin its limits and of 
the soil thereunder and held the same in trust for the common use and 
benefit of its inhabitants, and that by its^act of cession such Avaters 
with the subjacent soil became vested in the United States subject to 
the same trust. 

In the Illinois case the legislature had passed an act in 1869 grant¬ 
ing to the railroaxl company certain submerged lands in the harbor 
of the city of Chicago, which act it repealed in 1873. The railroad 
company objected to the repeal on constitutional grounds. 


EIGHTS ON THE ANACOSTIA EIVEK. 37 

Mr. Justice Field, in delivering the opinion of the Supreme Court, 
says: 

As to the grant of the submerged lands, the act declares that all the right 
and title of the State in and to the submerged lands constituting the bed of 
Lake Michigan and lying east of the tracks and breakwater of the company 
* * * are granted in fee to the railroad company, its successors and assigns. 

The grant is accompanied with a proviso that the fee of the lands shall be held 
by the company in perpetuity and that it shall not have the power to grant, 
sell, or convey the fee thereof (p. 450). 

This clause is treated by the company as an absolute conveyance to it of 
title to the submerged lands, giving it as full and complete power to use and 
dispose of the same, except in the technical transfer of the fee, in any manner 
it may choose, as if they were uplands in no respect covered or affected by 
navigable waters. Treating it as such a conveyance, its validity must be deter¬ 
mined by the consideration whether the legislature w^s competent to make a 
grant of the kind (p. 450). 

In the following extracts from the opinion the principles are set 
forth upon which the decision of the court was based: 

That the State holds the title to the lands under the navigable waters of 
Lake Michigan, within its limits, in the same manner as the State holds title to 
soils under tide water by the common law we have already shown, and that 
title necessarily carries with it control over the waters above them whenever 
the lands are subjected to use. But it is a title different in character from that 
which the State holds in lands intended for sale. It is different from the title 
which the United States holds in the public lands which are open to preemption 
and sale. It is a title held in trust for the people of the State that they may 
enjoy the navigation of the waters, carry on commerce over them, and have 
liberty of fishing therein freed from the obstruction or interference of private 
parties (p. 452). 

The State can no more abdicate its trust over property in which the whole 
people are interested—like navigable waters and soils under them, so as to 
leave them entirely under the control of private parties, except in the instance 
of parcels mentioned for the improvement of the navigation and use of the 
waters, or when parcels can be disposed of without impairment of the public 
interest in what remains—than it can abdicate its police powers in the adminis¬ 
tration of government and the administration of the peace (p. 453). 

Any grant of the kind is necessarily revocable and the exercise of the trust 
by which the property was held by the State can be resumed at any time. Un¬ 
doubtedly there may be expenses incurred in improvements made under such a 
grant which the State ought to pay; but be that as it may the power to resume 
the trust whenever the State judges best is, we think, incontrovertible (p. 455). 

The soil under navigable waters being held by the people of the State in 
trust for the common use and as a portion of their inherent sovereignty, any act 
of legislation concerning their use affects the public welfare. It is, therefore, 
appropriately within the police power of the State (p. 459). 

We hold, therefore, that any attempted cession of the ownership and control 
by the State in and over the submerged lands of Lake Michigan by the act of 
April 16, 1869, was inoperative to affect, modify, or in any respect to control the 
sovereignty and dominion of the State over the lands or its ownership thereof, 
and that any such attempted operation of the act was annulled by the repealing 
act of April 15, 1873, which to that extent was valid and effective. There can 
be no irrepealable contract in a conveyance of property by a grantor in disregard 
of a public trust under which he was bound to hold and manage it (p. 460). 

It is evident from the language of the Illinois act that its nature 
was fully understood by the legtslature. Congress was not similarly 
advised by the language of the acts of 1904, 1906, and 1907 upon 
the face of which there was nothing to indicate that lands covered 
by tidewater were to be disposed of. Under the doctrine of the Lake 
Front case it seems clearly to be competent for Congress to correct 
the misunderstanding by a repeal of the acts, and the return to Mr. 
Bieber of the moneys paid by him. 


38 


% 

EIGHTS ON THE ANACOSTIA KIVEE. 


When the legislature provides, for the sale or occupation^ of lands owned by 
the State and adjacent to tidewater, an express declaration is necessary to 
warrant the inference that it was intended to permit the shore below high- 
water mark to be converted into private property. A statute which extends 
the bounds of a town over tidewaters, so as to include certain islands therein, 
confers jurisdiction only and conveys no right of property in the soil under the 
water.— {Gould on Waters, sec. 36.) 

Upon a plat of the lands referred to in the acts of 1904, 1906, and 
1907, which is of record in the office of the surveyor of the District, 
that officer, at my request, has drawn the shore line of the river as 
shown on the King plan of 1803. The plat accompanies this report 
and is marked “ Exhibit No. 11.” 

It may be said, in conclusion, that in so far as the matter of riparian 
rights was involved in the suit instituted for the establishment of the 
title of the United States to the land and water within the limits of 
the improvement of the Potomac River and its flats (Morris v. U. S., 
174 U. S.), the existence of Water Street being proved, the United 
States, as the owner of the street, in fee, became the riparian owner. 

The disregard of the plan of the city by the first commissioners in 
laying out the city on the Anacostia River and its consequences are 
shown in the present report. 

I have the honor to be, very respectfully. 


Hugh T. Taggart. 


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